Constitution Check: Does the Second Amendment need to be amended?

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With gun control in the news, Lyle Denniston looks at the argument that a new constitutional amendment would be the only way to satisfy groups on both sides of the issue.

The statement at issue:

“Opinion polls suggest that a majority recognize a right to bear arms, subject to reasonable regulations protecting public safety. This strong dual commitment, if clarified and entrenched in our Constitution, could reassure most, though not all, of us. Before you mock the idea of a constitutional amendment, consider that hardly anyone is happy with our unstable status quo: gun enthusiasts fear their rights are under constant threat; gun control advocates point to the danger of illegal guns and easy access to firearms. … A new gun-rights amendment would need to articulate a basic consensus that would let both sides claim victory.”

– Zachary Elkins, a government professor at the University of Texas, in an op-ed column April 5 in The New York Times, “Rewrite The Second Amendment: The fight over gun rights can be settled with a constitutional change.”

We checked the Constitution, and…

In the 222 years since the Bill of Rights was added to the Constitution, Americans in every generation have toyed with the idea of adding more amendments. At any given point, at least a handful of proposed changes circulate in the body politic. And yet, only 17 additional amendments have actually made it into the Constitution.

There are a couple of lessons in this history. One of them, in fact, can be found in a phrase that Professor Elkins wrote at the end of his column: the need for “a basic consensus” before an amendment can succeed. Another is that, since 1803 and the Supreme Court decision in Marbury v. Madison, Americans have more or less trusted the Supreme Court to provide change when it was deemed truly necessary.

And, if the Supreme Court got it wrong, contradicting some “basic consensus” prevailing across the country, the formal process of amendment under Article V has been available to make the correction. Indeed, six of the 17 amendments since 1791–just about a third–were added for just that purpose.

It is important to note, though, that only two of those were quick in coming: the 11th Amendment, reinforcing state sovereignty, came just two years after a ruling by the justices in 1793, and the 26th Amendment, guaranteeing 18 as the minimum age for voting in all elections, came within about a year after a 1970 decision.

The other four responses to the court had to simmer for some time–one might say until a basic consensus had formed. Those were the three post-Civil War amendments (the 13th, 14th, and 15th), not added until at least eight years after the court’s decision in Dred Scott v. Sandford, and the 16th Amendment, allowing an income tax, 18 years following the court’s decision in Pollock v. Farmers Loan and Trust Co..

Judicial review–the notion that the job of interpreting the Constitution’s formal meaning is better performed as a judicial than a political function–is now widely accepted in America, although not universally. One thing clearly to its credit is that it has prevented the Constitution from ballooning into a huge document that reflects every passing fancy in politics, without any sense of lasting value. Free people need to know what the constitutional rules are, and frequent changes in the basic rules add too much uncertainty.

Professor Elkins’ plea for a clarifying amendment for the Second Amendment’s guarantee of a “right to keep and bear arms” is based largely on his argument that the Supreme Court has not yet adopted “fixed doctrine” on what the Second Amendment means. That is his view of the justices’ 2008 decision in District of Columbia v. Heller. Its unsettled nature, he suggests, was due to the 5-4 vote in that case.

About Constitution Check

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The very consensus that he finds expressed in current public opinion polling, though, is exactly what the court said about the Second Amendment five years ago: “a right to bear arms, subject to reasonable regulations protecting public safety.” Those are the professor’s words, and they are an accurate summary of the decision. The amendment that went into the Constitution in 1791 finally became, more than two centuries later, a guarantee of a personal right to own a gun, but the decision stressed that it was not an absolute right because it could be regulated by “reasonable” gun control.

It is true that the Hellerruling left unanswered a number of specific questions about gun rights. Maybe the most important of those is whether the personal right to possess firearms reaches beyond the home. But lower courts have been in the process, for the past five years, of making decisions on that very point, and sooner or later, the Supreme Court is almost certain to step in to sort it out.

What has been happening over the years since 2008 is that the reach of the Second Amendment has been percolating, both in the courts and in politics. And, while the country waits for the Supreme Court to get involved again, to provide some new constitutional guidance, the opinion polls cited by the Texas professor might be interpreted to suggest that the country as a whole thinks the court got it about right.

The Founders made it quite difficult to alter the Constitution, and they did that intentionally. As one watches these days the difficulty in Congress and in state legislatures in crafting new laws to deal with gun violence, it hardly seems likely that two-thirds of each house of Congress and three-fourths of all the states could now agree on language to amend the Second Amendment.

A dominant characteristic of the language of the American Constitution is that much of it is quite general. To illustrate: When the Constitution guarantees “due process,” what process is due? When it promises “equal protection of the laws,” who is equal to whom? When it creates a right to “bear arms,” where does that apply, and to what kind of firearms?

The Supreme Court’s most important gun rights decision so far, in the Heller case, allowed for “reasonable” regulations. Could the country agree on a different and more workable word or phrase to replace that, a replacement that would result in “fixed doctrine”? Not likely.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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